JUDGMENT : B. Panigrahi, J. - The order passed by the learned Sessions Judge, Balasore, in S.T. No. 118 of 1995 convicting the Appellant u/s 302 of the Indian Penal Code (for short "IPC") and sentencing him to undergo imprisonment for life has been assailed in this appeal. 2. The factual matrix leading to filing of this appeal is as follows: On 21.08.1994, one Gobinda Singh, the brother-in-law of the present Appellant, was found to be intoxicated by taking Handia (a kind of country liquor). Therefore, the Appellant was dipping him in water to deintoxicate him. P.W.1 Ramesh Singh, however, thought that the Appellant was emerging Gobinda. He dissuaded him from doing so as Gobinda might die due to suffoca on When P.W.1 requested the Appellant to take his brother-in-law out of water, instead of heeding to such request, the Appellant and one Bhalu Singh threatened him to assault. P.W.1 got annoyed and rushed towards them, but on the intervention of Rabi Singh (P.W.3), he went away to his house. Both P.Ws. 1 and 3 reported the matter to Sham Singh (deceased) the father of P.W.1. Thereafter, all of them (deceased and P.Ws. 1 and 3) again came to the tank. There followed a brawl between the Appellant and his associates (since acquitted) on one hand and the deceased and P.W.1 on the other. Some of the associates of the Appellant threatened P.W.1 to assault and also gave him fists and kicks. Seeing this, when the deceased tried to come to the rescue of his son, the Appellant dealt a blow on his head by means of a crowbar. When he tried to give Anr. blow on the head of the deceased, the latter tried to ward off by raising his left hand and the blow in the fore-arm of the said hand. After receiving the blows, the deceased fell down on the ground with bleeding injuries. No sooner did Sham Singh fall on the ground than the associates of the Appellant caught hold of him. When Sham Singh lost his senses, the Appellant and his associates left the scene of occurrence. Rabi Singh (P.W.3) rushed to the village and brought a trolley-rickshaw on which Sham Singh was taken to Balasore Sadar Police-station and thereafter to the hospital. P.W.1 orally explained the incident to the police, which was reduced to writing and treated as FIR, Ext. 4. Rabi Singh (P.W.3) rushed to the village and brought a trolley-rickshaw on which Sham Singh was taken to Balasore Sadar Police-station and thereafter to the hospital. P.W.1 orally explained the incident to the police, which was reduced to writing and treated as FIR, Ext. 4. A case was registered against the Appellant and the other accused persons (since acquitted) under Sees. 323 and 307, read with Section 34, IPC and the police immediately sprang into action. During the course of investigation. Sham Singh succumbed to the injuries and, therefore, the case turned to one u/s 302, IPC. The I.O. held inquest over the dead-body and sent it for post mortem examination. He also visited the spot, seized a crowbar on production by the Appellant, the blood stained earth and sample earth, a fulcrum (Bahungi) on production by P.W.2, and the wearing apparels chemical examination and serological test. The I.O. arrested the accused persons and on completion of investigation placed charge-sheet against them. 3. The defence plea was one of denial of the occurrence. It was further stated that since the parties belong to Adivasi community and the date of incident was a Purnima (full-noon) day, all of them had consumed liquor. By mutual push and pull, the deceased Sham Singh had received injuries and he died of the said injuries. 4. In all, nine witnesses were examined by the prosecution. P.Ws. 1, 2, 3, 4, 6 and 7 are said to be the eye-witnesses to the occurrence. P.W. 5 is a post-occurrence witnesses. P.W.8 is the doctor who conducted post mortem over the dead body and P.W.9 is the I.O. 5. Of the so-called eye-witnesses, P.Ws. 3. 4. 6 and 7 turned hostile and did not support the prosecution. Therefore, we are left with the evidence of P.Ws. 1 and 2, who are the son and daughter-in-law respectively of the deceased. From their evidence, it appears that on the date of occurrence, the Appellant got his brother-in-law emersed in the water of Khajira tank as he was found intoxicated. When P.W.1 prevented the Appellant from doing so, the latter and his companions threatened him and even went to the extent of giving fist blows. Thereafter, P.W.1 went away to his house and informed the incident to his father, the deceased. The deceased and P.W.1 again came to the tank to question the high-handed action of the Appellant. When P.W.1 prevented the Appellant from doing so, the latter and his companions threatened him and even went to the extent of giving fist blows. Thereafter, P.W.1 went away to his house and informed the incident to his father, the deceased. The deceased and P.W.1 again came to the tank to question the high-handed action of the Appellant. On their arrival at the spot, the associates of the Appellant. On their arrival at the spot, the associates of the Appellant attempted to catch hold of P.W.1. When the deceased tried to intervene, the Appellant gave him a blow by means of a crowbar on the head, as a result of which he fell down on the ground having sustained bleeding injury. P.W.2 was also present at the spot, but she did not venture to interfere for fear of her life. Then P.W.3 brought a trolley-rickshaw on which the deceased was taken to Balasore Headquarters Hospital where he was declared dead. P.W.2 has also supported the version of P.W.1 even though she is the wife of P. W. 1, since she was a natural witness to the occurrence, her evidence cannot be brushed aside. On a combined reading of the evidence of P.Ws. 1 and 2, it has been established that Sham Singh went near the tank and immediately thereafter there was a quarrel between the parties. In course of such quarrel the Appellant gave the murderous blow by a crowbar on the head, of the deceased, as a result of which he sank down on the ground. P.W.3 had taken the deceased to the District Headquarters Hospital where Sham Singh was declared dead. Even though P.Ws. 3, 4, 6 and 7 were declared hostile, but from their evidence it transpires that there was a quarrel near the tank between the Appellant and his companions on one hand and the deceased and P.W.1 on the other. 6. Mr. Acharya, learned Counsel appearing for the Appellant, has contended that in this case the prosecution has utterly failed to establish that the Appellant had any intention or motive to cause the death of Sham Singh. It is true that no evidence has been adduced/produced by the prosecution to establish the intention of the Appellant to cause the death of the deceased. It is true that no evidence has been adduced/produced by the prosecution to establish the intention of the Appellant to cause the death of the deceased. But, from the circumstances placed before us, there cannot be any doubt that the Appellant had the knowledge that the injuries inflicted by him might cause the death of Sham Singh. It is also contended by Mr., Acharya that charge was framed u/s 302/34, IPC not against the Appellant alone but against all the accused persons. Since the rest of the accused persons have been acquitted of the charge, the Appellant could not have been convicted u/s 302, IPC. In support of his submission, Mr. Acharya has placed reliance on a decision of this Court in Puma Badnaik v. State of Orissa (2002) 22 OCR 244. 7. Mr. Mohanty, learned Additional Government Advocate, has submitted that when there is pointed evidence against the Appellant that he had given a heavy blow on the head of the deceased by means of a crowbar, even though there was charge u/s 302/34, IPC, he must be held responsible for the act committed by him and he had been rightly convicted u/s 302, IPC. It is further highlighted that the Appellant u/s 302, IPC. Therefore, the submission made by the learned Counsel for the Appellant does not cut any ice. 8. It is true that this Court in Purna Badnaik's case (supra) has held that if one set of charge has been framed against more than one accused, there cannot be any legality to convict one accused, against whom the prosecution had placed sufficient evidence to show that exclusively because of his acts the death had taken place, while acquitting the rest of the accused persons. The judgment cited above may be taken as per incuriam, but cannot be regarded as having laid down the principle of law; nor can it be cited as a precedent. The Supreme Court in a number of decisions has laid down the principle that if on examining the evidence, it would appear that one of the accused was responsible for committing the offence, he alone can be convicted under the principal charge, irrespective of the fact that there was a joint charge with the aid of Section 34, IPC. Reference may be made to Hem Raj Vs. The State (Delhi Administration), . 9. The second limb of argument of Mr. Reference may be made to Hem Raj Vs. The State (Delhi Administration), . 9. The second limb of argument of Mr. Acharya is that even assuming that the Appellant had dealt a single blow on the head of the deceased, he could not have been convicted u/s 302, IPC inasmuch as it is noticed that there were three injuries on the head of the deceased and the doctor who conducted post mortem examination could not opine as to which of the injuries was responsible for the death of the deceased. We have been taken through the evidence of the doctor (P.W.8). On a careful perusal of his evidence, we find that he was not sure as to which of the injuries was responsible for the death of Sham Singh. He has also not expressed any opinion that the injuries in ordinary course of nature would cause death. 10. Mr. Mohanty, while repelling the submission of Mr. Acharya, has strenuously urged that in this case it has to be presumed that the Appellant had the knowledge that by inflicting such injury the death can be caused, even though the intention has not been proved. Therefore, the Appellant cannot escape from the liability of being convicted. In support of his submission, he has placed reliance on a decision of this Court in Khagapati Gouda v. State (1996) 10 OCR 488 . The facts of the reported case appear to be similar to those of the present case. In that case, this Court held (Para 8 at P. 491): The entire gravamen of the charge is that the Appellant shared the common intention with the co-accused Siba Bhotra and in furtherance of it committed the murder. The co-accused having been acquitted the element of sharing common intention with him disappears. In such situation, prosecution is obliged to prove the exact nature of Injuries caused by the Appellant and whether those injuries were of the character which would bring the case within Section 302, IPC. There is no positive evidence in the case to hold as to which particular injury was inflicted by the Appellant and which injury sustained by the deceased was responsible for his death. Therefore, his conviction u/s 302, IPC simpliciter is unsustainable in law. The Appellant, however, cannot escape from his individual liability of having caused injury to the deceased. He can. Therefore, his conviction u/s 302, IPC simpliciter is unsustainable in law. The Appellant, however, cannot escape from his individual liability of having caused injury to the deceased. He can. therefore, safely be convicted for having caused grievous hurt punishable u/s 325, IPC. Strong reliance is also placed on a decision of the Supreme Court in Ramchandra Ohdar Vs. The State of Bihar wherein it has been held (Para 4 at P. 452): The Appellant had given one blow with a sharp-edged weapon on the neck of the deceased. The medical evidence is silent about the nature of the injury caused by the Appellant. But considering the nature of the weapon, the part of the body on which the blow was given and the size of injury it can be said that the injury caused had endangered his life. Therefore, the Appellant can be convicted for the offence punishable u/s 326, IPC. 11. In view of the ratio of the above judgments, we are of the opinion that the Appellant can be convicted u/s 326, IPC instead of Section 302, IPC as the prosecution has been able to establish that he had given heavy blows on the vital part of the body of the deceased, namely, the head, though it has failed to prove as to which of the injuries sustained by the deceased was responsible for his death. As regards sentence, we are of the opinion that the period of imprison already suffered by the Appellant would meet the ends of justice. 12. In the result, this appeal is allowed in part. The conviction and sentence pass id against the Appellant u/s 302, IPC are set aside. He is convicted u/s 326. IPC and sentenced to the period of imprisonment already undergone. He b i released from jail custody and set at liberty forthwith. K. Misra, J. 13. I agree. Final Result : Allowed